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This first part in a two-part series examines the lack of federal agency oversight of gun defects. The second part explores the use of class actions to hold manufacturers accountable in light of that regulatory gap.

April 5 — When a defect in a consumer product starts to cause injuries or deaths, a recall process usually kicks in.

But no federal agency has authority to address gun defects—so defective firearms can't be recalled, unless a manufacturer does so voluntarily.

This strange regulatory gap is due to the fact that guns and ammunition are exempt from the definition of “consumer products” under the Consumer Product Safety Act.

Class actions may be the only route for gun owners to get defects fixed if manufacturers don't conduct voluntary recalls, a plaintiffs' attorney and consumer advocates tell Bloomberg BNA.

For example, settlements providing for gun replacements and other remedies are currently pending in lawsuits against Remington Arms Co. and Brazilian gunmaker Taurus Forjas S.A., in cases involving close to six million allegedly defective weapons.

Meanwhile, several House Democrats would like Congress to consider giving the Consumer Product Safety Commission the authority to regulate firearms.

But the subject appears to be politically difficult, caught up in the controversies surrounding guns generally—controversies that other consumer products don't face.

This first part in a two-part series examines what is known about the number of defective guns and the injuries they cause, and the lack of agency oversight of defective guns.

No Agency in Charge

The Consumer Product Safety Act excludes firearms and ammunition from the definition of a “consumer product” subject to regulation by the CPSC, along with products that fall under the purview of other agencies, such as tobacco and motor vehicles.

But no other agency has the authority to address gun defects.

Brian Garner, a spokesman for the Bureau of Alcohol, Tobacco, Firearms and Explosives, told Bloomberg BNA that the ATF has no authority to force a recall. He said he doesn't believe any other agency does, either.

The ATF regulates other aspects of firearms. For example, it requires licenses for importing and selling them. It also restricts the sale of armor-piercing ammunition and has issued regulations implementing the National Firearms Act, which concerns machine guns and other “destructive devices.”

Kristen Rand, legislative director of the Violence Policy Center in Washington, D.C., called gun manufacturing the only consumer-product industry “that's exempt from federal health and safety regulations.” The VPC advocates for firearms regulation.

The VPC's website attributes the exemption to lobbying. “Thanks to the political clout of the gun lobby, firearms escaped safety regulation in the 1970s when the U.S. Congress created the major product safety agencies,”
the group says on a web page titled, “Regulate Firearms Like Other Consumer Products.”

“This unique exemption has allowed gunmakers to innovate for lethality rather than safety,”
the VPC says.

Garner said the ATF works with gun manufacturers on a voluntary basis. But when pressed for examples, he said he wasn't aware of any instances.

“ATF has their own host of problems,” the VPC's Rand told Bloomberg BNA in a recent interview. “We think you have to have an agency that has a specific safety-oriented focus.”

Some consumer groups have “concerns about giving jurisdiction over guns to CPSC, because CPSC is such a small agency and I think taking on the gun lobby is very destructive,” Rand said.

“Our group advocates having jurisdiction over these sorts of issues,” Rand said. “But we say it should reside within the Justice Department in some newly created entity because guns are a very special product and you have to have an agency that can withstand the political heat that’s generated,” she said.

Federal authorities and researchers “have no idea how many people are killed by defective guns” or “by a specific make and model of gun,”
she said. “In order to have effective product regulation, you have to have good data. So that would be another function of regulating the industry—much more comprehensive data collection.”

Data Almost Nonexistent, Contested

The scope of the defective-gun problem is largely unknown.

A database maintained by the Centers for Disease Control and Prevention called the Web-based Injury Statistics Query and Reporting System (WISQARS) contains fatal and nonfatal injury data.

The database shows 586 unintentional firearm deaths in the U.S. in 2014 and an estimated 16,864 injuries in 2013.

The source for fatal injuries is the CDC's National Vital Statistics System; the nonfatal data come from the National Electronic Injury Surveillance System's All Injury Program, a joint project of the CDC and the CPSC.

Defect-related deaths and injuries aren't broken out. “The way the stats are collected, it’s only identified as an unintentional discharge,” Rand said.

Another database, the CDC's National Violent Death Reporting System, covers violent deaths for only a subset of states and doesn't contain information specific to defective firearms, Rand said.

“This is just a problem with gun data in general, that it’s not very detailed, it’s not complete, it’s a huge problem,” Rand said.

“If you look at how CPSC gathers data—they know about the circumstances in every incident in which a child is killed in a toy-related incident,”
Rand said. “They have a data-collecting capacity that allows them to intervene when they see certain products present an unreasonable risk of injury. We have nothing like that for guns.”

Forty Percent Defect Rate?

The data on gun defects is also incomplete because neither gun makers, nor their associations, make the data available.

Efforts to reach Remington and Taurus, the subject of the two pending class suits over alleged defects in some of their products, and Glock, Inc., another gunmaker, for comment weren't successful.

Michael Bazinet, a spokesman for the National Shooting Sports Foundation, a gun-industry trade association, told Bloomberg BNA the NSSF doesn't have “overall numbers on what the rate may be since that is the province of individual companies and the trade association does not provide that kind of tracking.”

So instead only rumors of defect rates exist. In 2012, blogger Chris Dumm reported hearing at a conference that “overall, the shooting industry carries a 40% return/defect rate.”

The post appeared in a pro-gun web publication, a blog called “The Truth About Guns,” which reviews guns and considers itself an independent voice.

Robert Farago, the blog's publisher, confirmed in a telephone interview that Dumm said he heard the figure from a representative of the NSSF.

But Bazinet rejected that 40 percent figure as inaccurate and also questioned whether it came from his organization. Sources “highly knowledgeable about the industry tell me they would categorically reject that observation,”
he said in an e-mail about the 40 percent comment. “I don’t know what the misunderstanding was, but that is wildly incorrect.”

“It is possible someone misspoke,” Bazinet said in a follow-up e-mail. “It is possible someone was misheard, but by no means does the industry have a defect/recall rate like that.”

Farago, the blog publisher,
said guns are generally fairly reliable, but pointed to specific models that have had problems. The Remington R-51 is inherently defective and potentially dangerous, he said. The R-51 review on the Truth About Guns website, however, mainly points to a failure to fire rather than misfires.

The Remington 887 shotgun was voluntarily recalled for an “accidental slam-fire”
issue—firing when racked—as was a Winchester pump-action shotgun, he said.

Numbers From Lawsuits

One large class action with a settlement in the works is against Remington, involving allegedly defective triggers in its popular Model 700 Bolt Action rifles (Pollard v. Remington Arms Co., W.D. Mo., No. 4:13-cv-00086, settlement preliminarily approved 4/14/15).

Remington has used the Walker Fire Control trigger assembly at issue in more than five million Model 700 rifles since 1962, the class complaint alleges .

Remington admitted receiving 3,273 customer complaints about the rifles firing without a trigger pull from 1992 to 2004, a 12-year period, the plaintiffs allege in the complaint.

“According to public records, there have been more than 140 lawsuits filed against Defendants involving serious injury or death as a result of a firing in the absence of a trigger pull of Remington bolt action rifles containing the Walker Fire Control,” the complaint says.

Another lawsuit, against
Forjas Taurus, alleges the company's PT140 Millenium pistol and similar models can fire when dropped and may even fire when the manual safety lever is switched to the “safe” position (, S.D. Fla., No. 1:13-cv-24583, settlement preliminarily approved 7/30/15).

Taurus sold 966,335 of the pistols to distributors for sale in the U.S. from about 1997 through early 2013, according to a July 2015 court order preliminarily approving a settlement in the class action.

David L. Selby II, who represents the named plaintiff, said he's aware of about 10 injuries due to alleged unintended discharges of the Taurus pistols. A suit over the death of an 11 year-old boy is also pending, he said.

“These are just the incidents we are aware of” in representing clients nationwide, said Selby, of Bailey & Glasser LLP in Birmingham, Ala.

On Capitol Hill

Rep. Janice D. Schakowski
(D.-Ill.), ranking member of the House Subcommittee on Commerce, Manufacturing &
Trade, said at a recent CPSC oversight hearing that several Democratic representatives had requested a hearing to consider giving the agency authority over gun standards.

She was disappointed, she said, that the majority rejected the idea. “It seems obvious that we should hear” those legislative proposals, she said.

Consumers Resisting Regulation?

Gun owners' attitudes toward regulation may be working against agency oversight.

“It’s odd, when you look at the attitude of the hard-core, pro-gun gun owner, that they don’t look at guns the way they look at any other consumer product they own,” Rand said.

“They kind of get angry that their gun has a defect, but they don’t look at it in any systemic way, that wow, there should be some entity making sure that the guns that go out on the marketplace function the way they should,” she said.

The National Rifle Association, a gun owners' group, declined to comment for this article. “The NRA’s mission is to protect the 2nd Amendment,” which concerns the right to bear arms, whereas this is “a consumer issue,” spokesman Lars Dalseide said in an e-mail to Bloomberg BNA.

Nevertheless, the organization's bylaws include the objective “to promote hunter safety,”
according to the NRA's profile on GuideStar.org.

To contact the reporter on this story: Martina S. Barash in Washington at mbarash@bna.com

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